BY AD v. RESHMI THOMAS, GOVERNMENT PLEADER

BY ADVS. SMT. RESHMI THOMAS, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.7885/2015 -3- J U D G M E N T Petitioner is the auction purchaser in respect of the property brought to sale by the Debts Recovery Tribunal, Ernakulam at the instance of the State Bank of India in execution of order obtained in OA No.231/2009 on the file of that court. The auction was held on 05-11-2013 and Ext.P4 sale certificate was issued to the petitioner on 05-02-2014. The petitioner obtained possession of the property immediately thereafter. The petitioner filed Ext.P6 application for mutation before the 5th respondent. Since no decision was taken on Ext.P6, the petitioner filed an application under the provisions of the Right to Information Act seeking information as to why the application for mutation was not being processed. The petitioner received Ext.P7 reply informing him that the application for mutation was not being processed on account of the fact that there were pending civil court attachments as well as tax arrears as also proceedings for recovery of fine amount of Rs.15,00,000/- against the erstwhile owner of the property [the defaulter]. In the meantime a revenue recovery notice was also pasted on the property for recovery of the amount of fine imposed by the criminal court. Though the petitioner approached the Revenue Divisional Officer (RDO), the RDO did not grant any relief to the petitioner and instead directed continuance of the revenue recovery proceedings against the petitioner. W.P (C) No.7885/2015 -4-

2. The learned counsel for the petitioner would submit that none of the matters set out in Ext.P7 is an impediment to the consideration of application for mutation. It is submitted that all the liabilities in question are those which arose after the property was mortgaged by the defaulter with the State Bank of India. It is submitted that the mortgage was created by deposit of title deeds on 11-02-2008. It is submitted the Exts.P12 and 18 documents will show that the alleged sales tax liability is actually penalty under the Money Lenders Act, 1958 for non-renewal of licence which was imposed on the defaulter. It is submitted that even though the provisions of Money Lenders Act provide for a priority in respect of the penalty since the penalty arose after the date of mortgage, the same cannot be an impediment for effecting the mutation in favour of the petitioner. It is submitted that the civil court attachments have been subsequently effaced from the Encumbrance certificate as is evident from Ext.P17. Reference is made to the decisions of this court in Madhan S. v. Sub Registrar, Kollam; 2014 (1) KLT 406 and Travancore Devaswom Board v. Deputy Examiner, Local Fund Audit and others; 2020 (3) KHC 129 to contend that civil court attachment after the date of mortgage cannot affect any action taken by the bank to recover the liabilities by enforcement of the mortgage. It is submitted that any proceedings to recover a fine imposed by a criminal court which is again after the date of mortgage and against the defaulter cannot be a charge W.P (C) No.7885/2015 -5- on the property affecting the petitioner's right to have mutation effected. It is submitted that the judgment of the criminal court awarding compensation was on 27-09-2010 in CC No.1651/2008 on the file of the Judicial First Class Magistrate Court-I, Cherthala which again is after the date of the mortgage on 11-02-2008.

3. The learned Government Pleader vehementally opposes the grant of any relief to the petitioner. It is submitted that the Government dues have a priority over the right of the bank to enforce the mortgage even if the liability was crystalized after the date of mortgage. It is submitted that while the petitioner may be entitled to relief regarding civil court attachments after the date of mortgage, the petitioner cannot be granted any relief considering the fact that there was crystalized dues imposed as penalty under the Money Lenders Act as also proceedings for recovery of amounts imposed as compensation by the Judicial First Class Magistrate Court-I, Cherthala in CC No.1651/2008. It is also pointed out that the provisions of Section 18 F (2) of the Money Lenders Act creates a statutory charge in respect of penalties imposed under Section 18F (1) of that Act.

4. Learned counsel for the petitioner in reply would submit that without standing on any technicality and considering the fact that the amounts imposed as penalty under Section 18F of the Money Lenders Act, going by Ext.P12 and P18 are Rs.5,000/- and Rs.20,000/-, the petitioner will W.P (C) No.7885/2015 -6- remit that amounts and on remittance of that amount the interim order dated 23-07-2015 in I.A. No.10210/2015 in this writ petition may be made absolute. The learned counsel also submits that a portion of the property has been sold to one Asha S. who is none other than the sister of the petitioner and the said person has been impleaded as additional 2nd petitioner through order dated 15-06-2023 in I.A. No.1/2021 in this writ petition.

5. Having heard the learned counsel for the petitioner and the learned Government Pleader, I am of the view that the petitioner is entitled to an order as now prayed for by the learned counsel for the petitioner. It is not in dispute that attachments levied by civil courts after the date of mortgage can have no effect whatsoever on the proceedings initiated by the bank to enforce the mortgage and recover the amounts due to it. See the judgments of this court in Madhan (supra) and Travancore Devaswom Board (supra). Therefore the civil court attachments mentioned in Ext.P7 cannot be an obstacle to the petitioner to obtain mutation. Coming to the proceedings for recovery of compensation following the judgment of the Judicial First Class Magistrate Court-I, Cherthala in CC No.1651/2008, it is to be noted that the judgment in CC No.1651/2008 was rendered only on 27-09-2010 which is after the date of mortgage of the property in question on 11-02-2008. Therefore the amount of compensation ordered to be recovered from the defaulter cannot be recovered by proceeding against the property W.P (C) No.7885/2015 -7- which was mortgaged and which had been proceeded against for recovery of amounts due to the 7th respondent bank. Therefore the revenue recovery proceedings and any attachment to recover the amounts due as compensation ordered by the Judicial First Class Magistrate Court-I, Cherthala in CC No.1651/2008 also cannot stand in the way of mutation of the property sold in auction to the petitioner being effected. Coming to the liability under Section 18F of the Money Lenders Act, 1958 considering the submission of the learned counsel for the petitioner that without standing on technicality, the petitioner will remit that amount together with any interest due thereon, I am of the view that without going into the question as to whether the priority in Section 18F of the Money Lenders Act would override the mortgage created in favour of the bank, the interim order dated 23-07-2015 in I.A. No.10210/2015 in this writ petition can be made absolute subject to payment of amount fixed fixed as penalty under the Money Lenders Act. In the light of the aforesaid findings, this writ petition will stand disposed of with the following directions; (i) The mutation effected in favour of the petitioner by virtue of the interim order dated 23-07-2015 in I.A. No.10210/2015 in this writ petition shall be treated as absolute on the petitioner remitting the amounts adjudicated against the original defaulter under the Money Lenders Acttogether with interest due thereon upto the date of payment before W.P (C) No.7885/2015 -8- the 6th respondent. The said amount shall be paid within a period of one month from the date of receipt of a certified copy of this judgment. (ii) The attachments by any civil court after 11-02-2008 shall not be treated as an impediment in mutation of the property in question in favour of the petitioner. (iii) The proceedings for recovery of the amounts imposed as compensation in CC No.1651/2008 Judicial First Class Magistrate Court-I, Cherthala shall also not be treated as any impediment in effecting the mutation of the property in question in favour of the petitioner. It is also made clear that the said demand cannot be enforced against the property in question as the judgment directing the payment of amount as compensation against the original defaulter was dated 27-09-2010 which was after the date of mortgage of the property in favour of the bank. I am inclined to so direct on account of the fact that there is no provision creating a priority in respect of compensation or fine imposed by criminal courts over the mortgage created in favour of the 7th respondent. Writ petition will stand disposed of accordingly. AMG Sd/- GOPINATH P. JUDGE W.P (C) No.7885/2015 -9- APPENDIX OF WP(C) 7885/2015 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 THE PHOTOCOPY OF THE ORIGINAL APPLICATION NO.231/2009 FILED BY THE 7TH RESPONDENT BANK BEFORE THE DEBTS RECOVERY TRIBUNAL, ERNAKULAM. THE PHOTOCOPY OF THE FINAL ORDER DATED 06-08-2010 OF THE DEBTS RECOVERY TRIBUNAL, ERNAKULAM IN O.A. NO.231/2009. THE PHOTOCOPY OF THE RELEVANT PAGE OF THE MATHRUBHHUMI DAILY NEWSPAPER DATED 05-10-2013 CONTAINING THE PROCLAMATION OF SALE DATED 26-09- 2013 OF THE RECOVERY OFFICER OF THE DEBTS RECOVERY TRIBUNAL, ERNAKULAM IN DEBTS RECOVERY CERTIFICATE NO.3278 IN O.A. NO. 231/2009. THE PHOTOCOPY OF THE CERTIFICATE OF SALE OF IMMOVABLE PROPERTY DATED FEBURARY, 2014 ISSUED BY THE RECOVERY OFFICER OF THE DEBTS RECOVERY TRIBUNAL, ERNAKULAM IN DRC NO.3278 IN O.A. NO. 231/2009 IN THE MATTER OF STATE BANK OF INDIA, SARC, ERNAKULAM V.B. MANOJ KUMAR & ANOTHER. Exhibit P5 THE PHOTOCOPY OF NOTICE DATED 05-02-2014 ISSUED BY THE RECOVERY OFFICER OF THE DEBTS RECOVERY TRIBUNAL, ERNAKULAM TO THE SUB REGISTRAR, KUTHIATHODE. Exhibit P6 THE PHOTOCOPY OF RECEIPT NO. 2567326 DATED 24-04- 2014 ISSUED BY THE 5TH RESPONDENT. Exhibit P7 THE PHOTOCOPY OF LETTER DATED 30-07-2014 ISSUED BY THE 5TH RESPONDENT. Exhibit P8 THE PHOTOCOPY OF LETTER NO. DLO-LA 4/2014 DATED 30-09-2014 ISSUED BY THE DISTRICT LAW OFFICCER, ALAPPUZHA TO THE ADDITIONAL TAHSILDAR, CHERTHALA. Exhibit P9 THE PHOTOCOPY OF NOTICE NO. B5-31/14/CD DATED 01- 10-2014 ISSSUED BY THE 4TH RESPONDENT. W.P (C) No.7885/2015 -10- Exhibit P10 THE PHOTOCOPY OF PROCEEDING NO.J.5155/2014.K.DIS. DATED 26-11-2014 OF THE 2ND RESPONDENT. Exhibit P11 THE PHOTOCOPY OF LETTER NO. J-5155/2014 DATED 04- 12-2014 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. Exhibit P12 THE PHOTOCOPY OF REQUISITION NO.RR/2011/2037/4 DATED 14-06-2011 ISSUED BY THE 6TH RESPONDENT UNDER SECTION 69 (2) OF THE KERALA REVENUE RECOVERY ACT. Exhibit P13 THE PHOTOCOPY OF LETTER NO. 2/15 DATED 03-02-2015 ISSUED BY THE PUBLIC INFORMATION OFFICER IN JFCM- I, CHERTHALA. Exhibit P14 THE PHOTOCOPY OF LETTER NO. 2/15 DATED 04-02-2015 ISSUED BY THE PUBLIC INFORMATION OFFICER IN JFCM- II, CHERTHALA. Exhibit P15 THE PHOTOCOPY OF LETTER NO. 3/15 DATED 16-02-2015 ISSUED BY THE PUBLIC INFORMATION OFFICER IN JFCM- I, CHERTHALA. Exhibit P16 Exhibit P17 THE PHOTOCOPY OF THE ENCUMBRANCE CERTIFICATE NO.6600/2013 DATED 21-10-2013 ISSUED BY THE KUTHIYATHODE SUB REGISTRAR'S OFFICE IN RESPECT OF PROPERTY COMPRISED IN SURVEY NOS. 248/2 AND 228/15 FOR THE PERIOD FROM 01-01-1998 TO 19-10-2013. THE PHOTOCOPY OF THE ENCUMBRANCE CERTIFICATE NO. 127/14 DATED 09-05-2014 ISSUED BY THE KUTHIYATHODE SUB REGISTRAR'S OFFICE IN RESPECT OF PROPERTY COMPRISED IN SURVEY NOS. 248/2/2 AND 228/15/2 FOR THE PERIOD FROM 01-01-2000 TO 08-05-2014.